Section 6510. Proceedings in cases of professional misconduct

In cases of
  professional misconduct the proceedings shall be as follows:
    1. Preliminary procedures.
    a. Complaint. A complaint of a licensee's professional misconduct  may
  be made by any person to the education department.
    b.  Investigation.  The  department  shall  investigate each complaint
  which alleges conduct constituting professional misconduct. The  results
  of  the  investigation  shall  be  referred  to the professional conduct
  officer  designated  by  the  board  of  regents  pursuant  to   section
  sixty-five  hundred  six  of  this article. If such officer decides that
  there is not substantial evidence of  professional  misconduct  or  that
  further proceedings are not warranted, no further action shall be taken.
  If  such  officer,  after consultation with a professional member of the
  applicable state board for the  profession,  determines  that  there  is
  substantial  evidence  of  professional  misconduct,  and  that  further
  proceedings are warranted, such proceedings shall be conducted  pursuant
  to  this section.   If the complaint involves a question of professional
  expertise, then such officer may seek,  and  if  so  shall  obtain,  the
  concurrence  of  at least two members of a panel of three members of the
  applicable board.  The department shall cause a  preliminary  review  of
  every  report  made  to  the department pursuant to section twenty-eight
  hundred three-e as added by chapter eight hundred sixty-six of the  laws
  of nineteen hundred eighty and sections forty-four hundred five-b of the
  public  health  law  and  three hundred fifteen of the insurance law, to
  determine  if  such  report  reasonably  appears  to   reflect   conduct
  warranting further investigation pursuant to this subdivision.
    c.   Charges.   In  all  disciplinary  proceedings  other  than  those
  terminated by an administrative  warning  pursuant  to  paragraph  a  of
  subdivision  two  of  this  section,  the  department  shall prepare the
  charges. The charges shall state the alleged professional misconduct and
  shall state concisely the material facts but not the evidence  by  which
  the charges are to be proved.
    d.  Records  and  reports  as  public information. In all disciplinary
  proceedings brought  pursuant  to  this  section  or  in  any  voluntary
  settlement  of  a complaint between the licensee and the department, the
  department shall notify the licensee in  writing  that  the  record  and
  reports  of such disciplinary proceeding or of such voluntary settlement
  shall be considered matters of public  information  unless  specifically
  excepted  in  this  article,  or  in any other law or applicable rule or
  regulation.
    e. Service of charges and notice of  hearing.  In  order  to  commence
  disciplinary  proceedings  under  this  title,  service of a copy of the
  charges and notice of hearing must be completed twenty days  before  the
  date  of  the  hearing  if  by  personal delivery, and must be completed
  twenty-five days before the date of the hearing if by any other method.
    f. Service of charges and of notice of hearing upon a natural  person.
  Personal  service  of  the charges and notice of any hearing pursuant to
  subdivision two or three of this section upon a natural person shall  be
  made by any of the following methods:
    (1) by delivery within the state to the person to be served; or
    (2)  by  delivery  within  the  state  to a person of suitable age and
  discretion at the actual place of  business,  dwelling  place  or  usual
  place  of abode of the person to be served and either: (i) by mailing by
  certified mail, return receipt requested, to the person to be served  at
  his  or  her last known residence, or (ii) by mailing by certified mail,
  return receipt requested, to the person to be served at his or her  last
  address  on  file  with  the  division  of  licensing  services  of  the
  department  in  an   envelope   bearing   the   legend   "personal   and

  confidential,"  provided that, in either case: such delivery and mailing
  shall be effected within twenty days of each other; service pursuant  to
  this  subparagraph shall be complete ten days after either the delivery,
  or  the  mailing,  whichever is later; and proof of service shall, among
  other things, identify such person of suitable age  and  discretion  and
  state the date, time and place of such service; or
    (3)  where  service  under subparagraphs one and two of this paragraph
  cannot be made with due diligence, a copy of the charges and the  notice
  of  hearing shall be served by certified mail, return receipt requested,
  to the person's  last  known  address  on  file  with  the  division  of
  licensing  services of the department or by affixing the changes and the
  notice of hearing to the door of either the actual  place  of  business,
  dwelling  place  or  usual  place  of  abode of the person to be served;
  provided that: service pursuant to this subparagraph shall  be  complete
  ten  days  after  such mailing, and proof of service shall set forth the
  department's efforts of due diligence.
    g. Service of charges and notice of hearing outside of  the  state.  A
  natural  person  subject  to  the  jurisdiction of the department may be
  served with a copy of the charges and the notice of hearing  outside  of
  the state in the same manner as service is made within the state, by any
  person authorized to make service within the state of New York or by any
  person  authorized  to make service by the laws of the state, territory,
  possession or country in which service is made or by any duly  qualified
  attorney or equivalent in such jurisdiction.
    2. Expedited procedures.
    a. Violations. Violations involving professional misconduct of a minor
  or  technical nature may be resolved by expedited procedures as provided
  in  paragraph  b  or  c  of  this  subdivision.  For  purposes  of  this
  subdivision,  violations  of  a minor or technical nature shall include,
  but shall not be limited to, isolated instances of violations concerning
  professional  advertising  or  record  keeping,   and   other   isolated
  violations  which  do  not  directly affect or impair the public health,
  welfare or safety. The board of regents shall  make  recommendations  to
  the  legislature  on  or before June first, nineteen hundred eighty-one,
  for the further definition of violations of a minor or technical nature.
  The initial instance of any violation of a minor or technical nature may
  be resolved by the issuance of an  administrative  warning  pursuant  to
  paragraph  b  of  this  subdivision.  Subsequent  instances  of  similar
  violations of a minor or technical nature within a period of three years
  may be resolved by the procedure  set  forth  in  paragraph  c  of  this
  subdivision.
    b.  Administrative  warning.  If a professional conduct officer, after
  consultation with a professional member of the state  board,  determines
  that  there  is substantial evidence of professional misconduct but that
  it is an initial violation of a minor or technical  nature  which  would
  not  justify  the  imposition of a more severe disciplinary penalty, the
  matter may be terminated by the issuance of an  administrative  warning.
  Such  warnings  shall  be  confidential  and  shall  not  constitute  an
  adjudication of guilt or be used as evidence that the licensee is guilty
  of the alleged misconduct. However, in the event of a further allegation
  of similar misconduct by the same licensee, the matter may  be  reopened
  and further proceedings instituted as provided in this section.
    c.  Determination  of  penalty  on  uncontested minor violations. If a
  professional conduct officer, after  consultation  with  a  professional
  member of the state board, determines that there is substantial evidence
  of  a  violation  of  a  minor  or  technical  nature,  and  of a nature
  justifying a penalty as specified in this paragraph, the department  may
  prepare  and  serve  charges  either by personal service or by certified

  mail, return receipt requested. Such charges shall include  a  statement
  that  unless  an  answer  is  received  within  twenty  days denying the
  charges,  the  matter  shall  be  referred  to  a  violations  committee
  consisting  of  at  least  three  members  of  the  state  board for the
  profession, at least one of whom shall be a public  representative,  for
  determination.  The violations panel shall be appointed by the executive
  secretary of the state board. The  licensee  shall  be  given  at  least
  fifteen  days  notice  of  the  time  and  place  of  the meeting of the
  violations committee and shall have the right to appear in person and by
  an attorney and to make a statement to the committee  in  mitigation  or
  explanation  of  the  misconduct.  The  department may appear and make a
  statement in support of its position. The violations committee may issue
  a censure and reprimand, and in addition, or  in  the  alternative,  may
  impose  a fine not to exceed five hundred dollars for each specification
  of minor, or technical misconduct. If the fine is not paid within  three
  months  the  matter  may be reopened and shall be subject to the hearing
  and regents decision procedures of this section.  The  determination  of
  the  panel  shall  be  final  and  shall  not  be subject to the regents
  decision procedures of this section. If an answer is filed  denying  the
  charges,  the matter shall be processed as provided in subdivision three
  of this section.
    d. Convictions of crimes or administrative  violations.  In  cases  of
  professional  misconduct  based  solely  upon a violation of subdivision
  five  of  section  sixty-five  hundred  nine  of   this   article,   the
  professional  conduct  officer may prepare and serve the charges and may
  refer the matter directly to a regents review committee for  its  review
  and   report   of   its   findings,   determination  as  to  guilt,  and
  recommendation as to the measure of discipline to be  imposed.  In  such
  cases  the  notice  of  hearing shall state that the licensee may file a
  written answer, brief and  affidavits;  that  the  licensee  may  appear
  personally  before  the  regents review committee, may be represented by
  counsel and may present evidence or sworn testimony  on  behalf  of  the
  licensee,  and  the  notice may contain such other information as may be
  considered appropriate  by  the  department.  The  department  may  also
  present  evidence  or  sworn  testimony  at  the hearing. A stenographic
  record of the hearing shall be made. Such evidence  or  sworn  testimony
  offered  at the meeting of the regents review committee shall be limited
  to evidence and testimony relating to the nature  and  severity  of  the
  penalty  to  be  imposed upon the licensee. The presiding officer at the
  meeting of the regents review committee may, in his or  her  discretion,
  reasonably  limit  the  number  of  witnesses  whose  testimony  will be
  received and the length  of  time  any  witness  will  be  permitted  to
  testify.  In  lieu  of referring the matter to the board of regents, the
  regents  review  committee  may  refer  any  such  matter  for   further
  proceedings  pursuant  to  paragraph  b  or  c  of  this  subdivision or
  subdivision three of this section.
    3. Adversary proceedings. Contested disciplinary proceedings and other
  disciplinary proceedings not resolved pursuant  to  subdivision  two  of
  this  section  shall  be tried before a hearing panel of the appropriate
  state board as provided in this subdivision.
    a. Notice of hearing. The department shall set the time and  place  of
  the  hearing  and  shall  prepare  the  notice of hearing. The notice of
  hearing shall state (1) the time and place of the hearing, (2) that  the
  licensee  may file a written answer to the charges prior to the hearing,
  (3) that the licensee may appear personally at the hearing  and  may  be
  represented  by  counsel,  (4) that the licensee shall have the right to
  produce witnesses and evidence in his behalf, to cross-examine witnesses
  and examine evidence produced against him, and  to  issue  subpoenas  in

  accordance  with the provisions of the civil practice law and rules, (5)
  that a stenographic record of the hearing will be  made,  and  (6)  such
  other information as may be considered appropriate by the department.
    b.  Hearing  panel. The hearing shall be conducted by a panel of three
  or more members, at least two of whom shall be members of the applicable
  state board for the profession, and at least one  of  whom  shall  be  a
  public  representative  who is a member of the applicable state board or
  of the state board for another  profession  licensed  pursuant  to  this
  title.  The  executive  secretary  for  the applicable state board shall
  appoint the  panel  and  shall  designate  its  chairperson.  After  the
  commencement  of  a  hearing,  no  panel  member  shall  be  replaced. A
  determination by the administrative officer of a need to  disqualify  or
  remove  any  panel member will result in the disqualification or removal
  of the panel and cause a new panel to be appointed. In addition to  said
  panel members, the department shall designate an administrative officer,
  admitted  to practice as an attorney in the state of New York, who shall
  have the authority to rule on all motions, procedures  and  other  legal
  objections and shall draft a report for the hearing panel which shall be
  subject  to  the  approval  of and signature by the panel chairperson on
  behalf of the panel. The administrative officer shall not be entitled to
  a vote.
    c. Conduct of hearing. The evidence in support of the charges shall be
  presented by an attorney for the department. The licensee shall have the
  rights required to be stated in the notice of hearing. The  panel  shall
  not  be  bound  by the rules of evidence, but its determination of guilt
  shall be based on a preponderance of the evidence. A hearing  which  has
  been  initiated  shall  not  be  discontinued  because  of  the death or
  incapacity to serve of one member of the hearing panel.
    d. Results of hearing. The hearing panel shall render a written report
  which shall include (1) findings of fact, (2) a determination of  guilty
  or not guilty on each charge, and (3) in the event of a determination of
  guilty,  a recommendation of the penalty to be imposed. For the panel to
  make a determination of guilty, a minimum of two of the  voting  members
  of the panel must vote for such a determination. A copy of the report of
  the hearing panel shall be transmitted to the licensee.
    4. Regents decision procedures.
    a.  Regents review committee. The transcript and report of the hearing
  panel shall be reviewed at a  meeting  by  a  regents  review  committee
  appointed  by  the  board of regents. The regents review committee shall
  consist of three members, at least one of whom shall be a regent.
    b. Regents review committee meetings. The review shall be based on the
  transcript and the report of the hearing panel. The licensee may  appear
  at  the  meeting,  and  the  regents  review  committee  may require the
  licensee to appear. The licensee may  be  represented  by  counsel.  The
  department  shall  notify  the  licensee  at least seven days before the
  meeting (1) of the time and place of the meeting, (2) of  his  right  to
  appear,  (3)  of  his right to be represented by counsel, (4) whether or
  not he is required to appear, and (5) of such other information  as  may
  be  considered  appropriate.  After  the  meeting,  the  regents  review
  committee shall transmit a written report of its review to the board  of
  regents.  In  cases  referred  directly  to the regents review committee
  pursuant to paragraph d of subdivision two of this section,  the  review
  shall  be  based upon the charges, the documentary evidence submitted by
  the department, any answer, affidavits or brief the licensee may wish to
  submit, and any evidence or sworn testimony presented by the licensee or
  the department at the hearing, pursuant to the procedures  described  by
  paragraph d of subdivision two of this section.

    c. Regents decision and order. The board of regents (1) shall consider
  the  transcript,  the report of the hearing panel, and the report of the
  regents review committee, (2)  shall  decide  whether  the  licensee  is
  guilty or not guilty on each charge, (3) shall decide what penalties, if
  any,  to  impose  as  prescribed in section sixty-five hundred eleven of
  this article, and (4) shall issue an order to carry out  its  decisions.
  Such  decisions  shall require the affirmative vote of a majority of the
  members of the board of regents. If the board of regents disagrees  with
  the  hearing  panel's  determination  of not guilty, it shall remand the
  matter to the original panel for reconsideration or to a new panel for a
  new hearing. The panel's determination of not guilty on  reconsideration
  or  a  new  hearing  shall  be final. The order shall be served upon the
  licensee personally or by certified mail to the  licensee's  last  known
  address  and  such  service  shall  be  effective  as of the date of the
  personal service or five days  after  mailing  by  certified  mail.  The
  licensee  shall  deliver  to the department the license and registration
  certificate which has been revoked, annulled, suspended, or  surrendered
  within  five  days after the effective date of the service of the order.
  If the license or registration certificate is  lost,  misplaced  or  its
  whereabouts is otherwise unknown, the licensee shall submit an affidavit
  to  that  effect,  and  shall deliver such license or certificate to the
  department when located.
    5. Court review procedures. The decisions of the board of regents  may
  be  reviewed  pursuant to the proceedings under article seventy-eight of
  the civil practice law and rules. Such proceedings shall  be  returnable
  before the appellate division of the third judicial department, and such
  decisions  shall  not  be  stayed or enjoined except upon application to
  such appellate division after  notice  to  the  department  and  to  the
  attorney   general  and  upon  a  showing  that  the  petitioner  has  a
  substantial likelihood of success.
    6. The provisions of subdivisions one through  four  of  this  section
  shall  not  be  applicable  to  proceedings  in  cases  of  professional
  misconduct involving the  medical  profession,  except  as  provided  in
  paragraph  m  of  subdivision  ten  of section two hundred thirty of the
  public health law.
    7. Notwithstanding any other provision of law, persons who assist  the
  department  as  consultants  or expert witnesses in the investigation or
  prosecution  of  alleged  professional  misconduct,  licensure  matters,
  restoration  proceedings,  or  criminal  prosecutions  for  unauthorized
  practice, shall not be  liable  for  damages  in  any  civil  action  or
  proceeding  as  a result of such assistance, except upon proof of actual
  malice. The attorney general shall  defend  such  persons  in  any  such
  action or proceeding, in accordance with section seventeen of the public
  officers law.
    8.  The  files  of  the  department  relating  to the investigation of
  possible instances of professional misconduct, or the unlawful  practice
  of  any profession licensed by the board of regents, or the unlawful use
  of a professional title or the moral  fitness  of  an  applicant  for  a
  professional license or permit, shall be confidential and not subject to
  disclosure  at  the  request  of  any person, except upon the order of a
  court in  a  pending  action  or  proceeding.  The  provisions  of  this
  subdivision  shall  not  apply  to documents introduced in evidence at a
  hearing held  pursuant  to  this  chapter  and  shall  not  prevent  the
  department from sharing information concerning investigations with other
  duly  authorized public agencies responsible for professional regulation
  or criminal prosecution.
    9. A disciplinary proceeding under subdivision three or four  of  this
  section  shall  be treated in the same manner as an action or proceeding

  in supreme court for the purpose of  any  claim  by  counsel  of  actual
  engagement.